Madras High Court
Poongothai vs Spartan Matriculation Hr. Sec. ... on 22 August, 2023
C.M.A.No.434 of 2023
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.A.No.434 of 2023
1.Poongothai
2.Pichalu
3.Padmakumari ...Appellants
Vs.
1.Spartan Matriculation Hr. Sec. School,
No.570, Spartan International School,
CBSE, Kannadasan Street,
Chembakkam, Malayambakkam Village,
Chennai – 600 123.
2.Cholamandalam MS General Insurance Company Ltd.,
Hari Nivas Towers, 2nd Floor,
No.163-A, Thambu Chetty Street,
Chennai – 600 001. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the decree and judgment dated 16.12.2021 made
in MCOP.No.474 of 2018 on the file of the Motor Accident Claims
Tribunal, (II-Small Causes Court), Chennai.
1/9
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C.M.A.No.434 of 2023
For Appellant : Mr.K.Varadha Kamaraj
For Respondents : Mr.N.Navaneetha Krishnan for R1
Mr.M.B.Raghavan for
M/s.M.B.Gopalan Associates for R2
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
This appeal is at the instance of the claimants, who are the father,
mother and sister of the deceased Ramanan, who died in a motor accident
that occurred around 11.30 a.m on 01.11.2017.
2.According to the claimants, while the deceased Ramanan was
riding a motor cycle bearing Registration No.TN-09-CJ-7417 from West to
East at the entrance of Koyambedu bridge, the bus bearing Registration
No.TN-13-A-0725 belonging to the 1st respondent School driven by its
driver in a rash and negligent manner came from behind and hit the motor
cycle. As a result of the impact, the rider of the motor cycle was thrown off
from the vehicle and he suffered head injuries and multiple injuries all over
the body and died on the spot. Claiming negligence on the part of the driver
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C.M.A.No.434 of 2023
of the School bus as the cause for the accident, the claimants sought for a
compensation of Rs.50,00,000/-.
3.To support the quantum, the claimants had averred that the
deceased was working as Marketing Engineer and was earning about
Rs.18,000/- per month. The fact that he was aged 23 years was also made as
a ground to sustain the quantum.
4.The Insurance Company resisted the claim contending that the
accident did not occur in the manner suggested and the deceased also
contributed to the accident to a certain extent. The fact that the deceased
was not wearing a helmet was also projected as a defence. At trial, the 1st
climant / mother of the deceased was examined as P.W.1 and two other
witnesses were examined as P.W.2 and P.W.3. Exs.P1 to P16 were marked.
On the side of the respondents, driver of the school bus was examined as
R.W.1, the Deputy Manager of the Insurance Company was examined as
R.W.2 and the Administrator of the School was examined as R.W.3. Exs.R1
to R13 were marked.
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C.M.A.No.434 of 2023
5.The Tribunal, on a consideration of the evidence on record
concluded that the accident occurred due to rash and negligent driving of
the school bus. It however, held that the fact that the deceased has died of
head injuries and was not wearing a hemlet would entail deduction of
certain percentage of the compensation for contributory negligence. The
Tribunal, fixed the quantum of said contributory negligence at 10%. As
regards the quantum of compensation, the Tribunal fixed Rs.15,000/- as
monthly income of the deceased and added 40% towards future prospects.
The deceased being a bachelor, the Tribunal deducted 50% towards his
personal expenses. By applying a multiplier of 18, it arrived the loss of
dependency at Rs.22,68,000/-. The Tribunal added a sum of Rs.15,000/-
towards loss of estate, Rs.40,000/- towards loss of love and affection,
Rs.15,000/- towards funeral expenses. It deducted 10% towards
contributory negligence and fixed the total compensation payable at
Rs.21,04,200/-. Aggrieved, the claimants are on appeal.
7.We have heard Mr.K.Vardha Kamaraj, learned counsel for the
appellant, Mr.N.Navaneetha Krishnan, learned counsel for 1st respondent
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C.M.A.No.434 of 2023
and Mr.M.B.Raghavan, learned counsel for the 2nd respondent.
8.While Mr.K.Varadha Kamaraj, learned counsel for the
appellants would vehemently contend that in the light of the evidence of
P.W.2 and R.W.1, the Tribunal was not right in concluding that the deceased
was not wearing a hemlet. He would also further contend that the award on
the head of loss of love and affection has been fixed only at Rs.40,000/-
whereas as per the judgment of the Honble Supreme Court in National
Insurance Company Limited Vs. Pranay Sethi and Others reported in
(2017) 16 SCC 680 each one of the dependents would be entitled to
Rs.40,000/- towards loss of love and affection. Therefore, according to the
learned counsel, the Tribunal should have awarded a further sum of
Rs.80,000/- towards loss of love and affection, since there are three
dependents in the case on hand.
9.Contending contra, Mr.M.B.Raghavan, learned counsel for the
2nd respondent would submit that even though R.W.1 has stated that he saw
a helmet in the vicinity of the accident, that by itself would not go to show
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C.M.A.No.434 of 2023
that the deceased was wearing a helmet. He would also point out that the
Tribunal has considered the nature of injury and arrived at a conclusion that
if only the deceased was wearing a helmet at the time of accident, he would
not have suffered such injury. This conclusion, according to
Mr.M.B.Raghavan is reasonable and the same need not be disturbed. We
have considered the rival submissions.
10.No doubt, P.W.1 has claimed that the deceased was wearing a
helmet but she was not present at the time of the accident. R.W.1 has stated
he saw a helmet in the vicinity of the accident. The Tribunal has taken into
account the autopsy report, which shows the nature of injuries suffered and
the cause of death. The Tribunal had come to the conclusion based on the
said report that the death had occurred due to a head injury and it would not
have happened, if only the deceased was wearing a helmet. We do not
think, we can tinker with the said finding of the Tribunal based on Ex.P2 /
autopsy report, which is prepared by an expert. Hence, we are not able to
fault the Tribunal for deducting 10% towards contributory negligence.
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C.M.A.No.434 of 2023
11.As regards the quantum of compensation also, we find that the
same is reasonable as the Tribunal has taken the gross salary at Rs.15,000/-,
added 40% increase for future prospects, deducted 50% towards personal
expenses, since the deceased was a bachelor and applied multiplier of 18.
Therefore, we do not find any reason to interfere with the determination of
the loss of dependency also.
12.However, as rightly point out by Mr.K.Varadha Kamaraj, the
compensation granted for loss of love and affection has to be increased to
Rs.1,20,000/- from Rs.40,000/-, since there are three dependents in the case
on hand. If that increase is adopted, the compensation payable would be
Rs.21,76,200/-. Thus, the total compensation arrived at Rs.21,76,200/-.
13.It is stated that the Insurance Company has satisfied with the
award as granted by the Tribunal. The Insurance company will have six
weeks time to pay the balance amount along with interest at 7.5% as granted
by the Tribunal. The enhanced compensation i.e., Rs.72,000/- will be paid
out to the mother of the deceased.
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C.M.A.No.434 of 2023
14. In view of the same, this Civil Miscellanoue Appeal is partly
allowed. No costs.
(R.S.M.,J.) (R.K.M.,J.)
22.08.2023
kkn
Internet:Yes
Index:No
Speaking
Nuetral Citation :No
To:-
The Motor Accident Claims Tribunal,
II-Court of Small Causes,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.434 of 2023
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
KKN
C.M.A.No.434 of 2023
22.08.2023
https://www.mhc.tn.gov.in/judis
